Citation Nr: 1700320
Decision Date: 01/05/17 Archive Date: 01/13/17
DOCKET NO. 16-38 639 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to Waiver of Premiums on Service-Disabled Veterans Insurance (RH) under Sections 1912(a) and 1922(a) of Title 38, United States Code.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. B. Cryan, Counsel
INTRODUCTION
The Veteran served on active duty from January 1955 to August 1958.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 administrative decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).
(The following issues are also on appeal to the Board and will be addressed in a separate decision: Entitlement to service connection for ruptured sinus, ruptured ulcer, joint pain, and basal cell carcinoma; and, entitlement to higher ratings for the service-connected posttraumatic stress disorder (PTSD) rated as 50 percent disabling, and bilateral hearing loss rated as 10 percent disabling prior to November 16, 2014 and rated as 20 percent disabling thereafter; and, entitlement to a total rating based on individual unemployability due to service-connected disabilities; and, entitlement to an effective date prior to November 16, 2014 for the grant of an increased rating of 20 percent for the service-connected bilateral hearing loss.)
FINDINGS OF FACT
1. The Veteran originally filed for RH insurance in October 2014; and he was found medically acceptable for RH insurance in March 2015.
2. The Veteran was not found to be continuously totally disabled for insurance purposes prior to his 65th birthday, May [redacted], 1995.
CONCLUSION OF LAW
The criteria for entitlement to a waiver of premiums for Service-Disabled Veterans Insurance (RH) are not met. 38 U.S.C.A. § § 1912, 1922 (West 2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA has a duty to notify and to assist the claimant with the development of his or her claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016).
The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than evaluation of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).
In this case, the appeal involves the application of the provisions of 38 U.S.C.A. §§ 1912 and 1922 regarding the requirements for entitlement to waiver of premiums. As the pertinent facts are undisputed, namely the date on which the Veteran reached the age of 65, and the date on which he applied for RH insurance, VA in this case does not have a duty to notify the Veteran of the evidence needed to substantiate his claim, or to assist him in obtaining that evidence, because no reasonable possibility exists that any assistance would aid him in substantiating the claim. Wensch v. Principi, 15 Vet. App. 362, 368 (2001).
The United States, through VA, provides life insurance for those who have other than dishonorable active duty military service and a resulting compensable disability, if they would otherwise be insurable but for the disability. This insurance is granted under the same terms and conditions as standard policies of National Service Life Insurance with the exception of calculation of premiums and benefits. For insurance issued under this section, waiver of premiums shall not be denied on the grounds that the service-connected disability became total before the effective date of such insurance. 38 U.S.C.A. § 1922 (a).
Payment of premiums on insurance may be waived when the insured is totally disabled for six or more consecutive months. Such a waiver is allowed where the total disability began after the date of the insured's application for insurance, but while the insurance was in force under conditions which required the payment of premiums, and before the insured's 65th birthday. 38 U.S.C.A. § 1912 (a).
The facts pertinent to this appeal are not in dispute. The Veteran served on active duty from January 1955 to August 1958. The Veteran was last gainfully employed full-time on December 31, 1990; and, his initial application for RH insurance was received in October 2014, long after the Veteran's 65th birthday in May 1995.
Service connection is currently in effect for posttraumatic stress disorder, rated as 50 percent disabling from May 9, 2008; tinnitus, rated as 10 percent disabling from May 9, 2008, bilateral hearing loss, rated as 10 percent disabling from May 9, 2008 and 20 percent disabling from November 16, 2014.
Although there are pending claims on appeal which include a claim for a total disability rating based on individual unemployability due to service-connected disabilities, no subsequent grant of benefits would have a bearing on the decision in this case. In other words, the Veteran was long past the age of 65 at the time he filed for insurance.
The Veteran asserts that he has been totally disabled since January 1, 1991, the first day on which he became unemployed. The Veteran further maintains that he was forced into retirement as a result of his service-connected PTSD. It is clear from the Veteran's correspondence that he sincerely believes that his service-connected disabilities rendered him totally disabled and unable to work as of January 1, 1991.
Unlike claims for total disability for pension or compensation purposes, the insured need not show total and permanent disability to prove he is "totally disabled" for insurance purposes. Rather, he must submit evidence establishing that, due to disability, he is unable to pursue continuously for six or more consecutive months a substantially gainful occupation without material injury to his health. See Makowski v. United States, 105 F. Supp. 575 (M.D. Pa. 1952); Vandver v. United States, 125 F. Supp. 508 (W.D. Ky. 1954), aff'd, 232 F.2d 398 (Fed. Cir. 1956).
However, the date on which the Veteran believes he was 100 percent disabled is not the determinative factor in this case. In other words, regardless of when the Veteran actually became too disabled to work, he did not file for RH insurance until well after his 65th birthday.
Under 38 U.S.C.A. § 1912(a) (West 2014), payment of premiums on insurance may be waived during the continuous total disability of the insured, which continues or has continued for six or more continuous months, if such disability began: (1) after the date of the insured's application for insurance; (2) while the insurance was in force under premium-paying conditions; and (3) before the insured's 65th birthday.
In the present case, the Veteran applied for RH insurance in 2014 and was granted an insurance policy in 2015. However, at the time of the effective date of the insurance policy, he was already over the age of 65. In fact, at the time he initially filed for service connection in 2009, the Veteran was well over the age of 65 years old.
As the Veteran did not file an application for insurance until after his 65th birthday, he is time-barred under the statutory provisions of 38 U.S.C.A. § 1912, which expressly requires that he must have become totally disabled after his application for insurance but before his 65th birthday in order to be eligible for a waiver. Because his application for insurance benefits was not filed prior to his 65th birthday, he is therefore statutorily precluded from entitlement to a waiver of insurance premiums under the applicable laws and regulations.
In short, the Veteran is not eligible for waiver of premiums for Service-Disabled Veterans Insurance (RH) because the legal requirements set forth in 38 U.S.C.A. § 1912 (a) have not been met. Inasmuch as the bar to waiver is a matter of law, the benefit-of-the-doubt principle of 38 U.S.C.A. § 5107 (b) does not apply here.
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ORDER
Entitlement to waiver of premium for Service-Disabled Veterans Insurance (RH) is denied as a matter of law.
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K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs